Kevin D. Pomfret
In the past, remote sensing was primarily the domain of those with high security clearances and/or big budgets. Military and intelligence agencies used high quality satellite remote sensing for global observation, intelligence, treaty verification and the targeting and monitoring of enemies and potential threats. Civilian government agencies used lower resolution imagery for matters such as mapping, environmental issues and infrastructure planning.
However, over the past ten years computing power has increased and the cost of transmitting data has decreased, making it more cost effective to deal with the large data files associated with remotely sensed data. In addition, the equipment used to collect spatial data got much smaller, reducing costs and increasing mobility both in the sky and on the ground. Software used to manipulate data became less expensive and more ubiquitous. The elimination of selective availability in 2000 with regards to the GPS system resulted in a rapid increase in commercial applications. At about the same time several companies began to collect high resolution satellite imagery for commercial purposes. Shortly thereafter, there was a rapid increase in the number of cell phones and other handheld devices, further increasing the demand for mobile and location based applications. The introduction of Google Earth in 2005, in addition to other web mapping services, contributed to the explosion of interest in spatial data in general and over time unleashed the power of community remote sensing.
Unfortunately, the legal and policy communities have not kept pace with the rapid adaption of this technology for commercial and societal purposes. As a result, there are a wide range of issues associated with the collection, distribution and use of spatial data that remain unresolved or confusing. These issues - which include privacy, liability, intellectual property rights and national security become even more complex when associated with community remote sensing. . This uncertainty already impacts the cost and ease of collecting and sharing spatial data for both governmental and commercial entities. In addition, unless an informed and cohesive legal and policy framework is developed for spatial data; there is a growing risk that community remote sensing will ultimately be underutilized.
It should not be surprising that a legal and policy framework does not currently exist with regards to spatial data; the legal and policy communities historically are reactive when it comes to the introduction of a new technology. However, given the increased pace in which this technology has been deployed and adapted in today's society, the lack of such a framework becomes increasingly noticeable. In addition, because of some unique attributes associated with spatial data, the need for such a framework is arguably even more imperative.
Intellectual property rights. Determining a party's intellectual property rights (IPR) in spatial data is a challenge. Copyright law with respect to spatial data is complicated and can be confusing, In addition, there are a number of factors that must be considered in determining a party's property rights, including where the data was collected, the type of party (e.g. private company or public entity) exercising the rights and how the data was compiled.
The issue becomes even more complex with respect to community remote sensing data. Most community remote sensing data collectors want their data to be broadly shared, with as few restrictions as possible. Unfortunately, an effective license agreement to provide for such sharing does not exist although a number of efforts are currently ongoing to develop such a license agreement. In addition, most spatial data products generally are a compilation of a variety of data sources. These sources may include commercial proprietary data, and data from a variety of government sources (e.g. federal, state, and local). In the United States these government sources may have varying degrees of intellectual property rights in their respective data sets. Adding community remotely sensed data into the product mix makes things more complicated.
Data Quality. One of the unique attributes of spatial data is its versatility. A single data set can be used for a number of different applications. However, the quality of the data (accuracy, timeliness, completeness, etc.) may not be sufficient for all such applications. As the use of spatial data for commercial purposes increases, the question arises as to who is responsible for determining what data quality is required for a particular application. Inevitably this will lead into related matters, such as the important role of collecting and updating metadata for spatial data. Metadata which can include such information as when the data was obtained and from what sensor type and location can be considered the DNA of spatial data; its importance to spatial data is greater than with most other types of data.
Data quality relates directly to the issue of potential liability. As spatial data products become more mainstream, and work their way into the consumer markets, traditional legal concepts will arise. For example, understanding how concepts in the Uniform Commercial Code such as merchantability and fitness for a particular purpose apply to spatial data products will become increasingly important, as will the concept of legal elements associated with negligence.
This issue becomes more important with the rise of community remotely sensed data. As more individuals contribute to the spatial data landscape, there will be an increased need for oversight to make sure that the data is used for the purpose for which it is collected. In addition, standards may also need to be developed so that data users can be sure that the data is sufficient for the purpose for which it is being held out.
Privacy. As applications using spatial data have increased, so have the general public's concerns with respect to location privacy. The challenge for policymakers and the legal community as a whole will be to differentiate between real and perceived threats to an individual's privacy. For example, media reports on Google Street View will frequently associate the privacy concerns of collecting an image of a person on a public street and displaying it on the Internet with monitoring an individual's location on a continuous basis through the use of the cell phone or similar device. However, the spatial technology used and the implications of such use are very different and any effort to compare the two can be misleading.
Also, the concept of privacy from a location standpoint is quite new. For example, the U.S. government's current privacy policy with respect to data collected on citizens does not explicitly cover the dramatic growth in the number and types of technologies that can track individuals Any efforts to update these policies requires an understanding of the capabilities and limitations of spatial technology.
With respect to community remote sensed data there are two primary issues that need to be considered. First, most people in the community are unaware of the laws that are currently in place to protect an individual's privacy, and therefore there is a greater risk that sensitive data will be collected unknowingly. The second issue is that from a spatial standpoint, privacy may not be violated by the collection of a single data point on an individual but rather in the aggregation of a variety of data points. Since community remotely sensed data will frequently be more local, there is a greater chance that data will be collected on an individual that will encroach upon such individual's privacy when it is aggregated with other types of data.
International Considerations. Many of these issues are made even more complicated because of international nature of spatial technology. Cultural and political differences have resulted in varying concepts of privacy and national security. For example, in China mapping is heavily regulated. Concepts such as liability also frequently vary across nations, as do protections of intellectual property rights.
For the community remote sensing collectors, it is important to realize that what is permissible with regards to data collection, use and sharing in one country may not be permissible in another. Laws with respect to intellectual property rights, liability, privacy and even national security vary greatly and may not always be written down. Therefore great care should be taken before starting a project or using and/or sharing data that has been collected.
Spatial technology is having a significant impact on our society as well as the global economy. Almost daily, new and useful applications for collecting, analyzing and distributing spatial data are being developed; and, it is safe to assume that these applications will continue to grow with increased computer power, reduced costs associated with broadband and connectivity. The challenge will be develop a legal and policy framework that nurtures this growth while at the same time protecting important societal and personal interests. Developing this framework will require an active dialogue between technical experts, policymakers, lawyers and business professionals.
Kevin Pomfret is an attorney with LeClairRyan in Virginia and Executive Director of the Centre for Spatial Law and Policy. He can be reached at Kevin.Pomfret@leclairryan.com